The
current statute, effective in New Jersey on May 1, 1982, was modeled upon the
1969 version of the Uniform Probate Code. This law attempts to bring greater
uniformity to the rules governing testamentary and non-testamentary transfers
in response to the significant number of non-testamentary transfers that occur
at the time of the decedents death. For example, a new term, "governing
instrument" has been incorporated as a definition in the law to include
deeds, trusts, insurance and annuity policies, POD (pay on death) accounts,
securities registered in beneficiary form (TOD), pension, profit sharing,
retirement and similar benefit plans, and other wealth transfer instruments.
The law, however, does vary from the 1990 version of the Uniform Probate Code due
to the unique elective share law that continues to exist in the State of New
Jersey, which has been left for separate consideration. The law clarifies the
definitions of "descendant," "heirs," "incapacitated
individual," "joint tenants with right of survivorship,"
"per capita distribution," "per stripes" distribution and
distribution of estates "by representation." The law also clarifies
situations where writings that are intended as wills would be allowed, but
requires that the burden of proof on the proponent would be by clear and
convincing evidence. The law provides that divorce or annulment of a marriage,
under certain circumstances, would revoke not only provisions of the former
spouses will, but also non-probate transfers occurring by reason of the decedents
death to the former spouse. The law expands the provisions requiring survival
of a beneficiary by 120 hours to succeed to an interest of a decedent in
non-probate transfers. The law also makes substantial revisions to the laws
governing intestate succession. For example, the law provides that the
intestate share of a surviving spouse would be 100 percent of the intestate
estate where all of the surviving descendants of the decedent are also the
descendants of the surviving spouse and the surviving spouse has no other
descendants. Currently, such a surviving spouse receives the first $50,000 plus
50 percent of the intestate estate. Further, the surviving spouse would now be
entitled to a larger share of the estate in the event that either a parent of
the decedent survives a decedent who has no descendants, or there are
descendants of the surviving spouse who are not descendants of the decedent.
Finally, stepchildren of a decedent would be added as a final class of takers.
The law expands the law with respect to disinheritance of a person who
criminally and intentionally kills the decedent to include revocation of
non-testamentary dispositions. The law consolidates the law concerning
disclaimers of probate and non-probate property. The law clarifies that a
fiduciary may, with court approval, disclaim any power or discretion held by
such fiduciary, and may disclaim without court approval if the governing
instrument so permits. Finally, the law expands the rules of construction
formerly applicable only to wills to other donative transfers. The law provides
a statute of limitations with respect to creditor claims against a decedents
estate. This bill was signed into law on August 31. It will be effective on
March 31, 2005.
CHAPTER
132
An
Act concerning wills and estates and revising various sections of the statutory
law.
Be
It Enacted by the Senate and General Assembly of the State of New Jersey:
1.
N.J.S.3B:1-1 is amended to read as follows:
Definitions
A to H. 3B:1-1. As used in this title, unless otherwise defined:
"Administrator" includes general administrators of an intestate and
unless restricted by the subject or context, administrators with the will
annexed, substituted administrators, substituted administrators with the will
annexed, temporary administrators and administrators pendente lite.
"Beneficiary," as it relates to trust beneficiaries, includes a
person who has any present or future interest, vested or contingent, and also
includes the owner of an interest by assignment or other transfer and as it
relates to a charitable trust, and includes any person entitled to enforce the
trust. "Child" means any individual, including a natural or adopted
child, entitled to take by intestate succession from the parent whose
relationship is involved and excludes any individual who is only a stepchild, a
resource family child, a grandchild or any more remote descendant.
"Claims" include liabilities whether arising in contract, or in tort
or otherwise, and liabilities of the estate which arise at or after the death
of the decedent, including funeral expenses and expenses of administration, but
does not include estate or inheritance taxes, demands or disputes regarding
title to specific assets alleged to be included in the estate.
"Cofiduciary" means each of two or more fiduciaries jointly serving
in a fiduciary capacity. "Descendant" of an individual means all of
his progeny of all generations, with the relationship of parent and child at
each generation being determined by the definition of child contained in this
section and parent contained in N.J.S.3B:1-2. "Devise," when used as
a noun, means a testamentary disposition of real or personal property and when
used as a verb, means to dispose of real or personal property by will.
"Devisee" means any person designated in a will to receive a devise.
In the case of a devise to an existing trust or trustee, or to a trustee of a
trust described by will, the trust or trustee is the devisee and the
beneficiaries are not devisees. "Distributee" means any person who
has received property of a decedent from his personal representative other than
as a creditor or purchaser. A trustee is a distributee only to the extent of a
distributed asset or increment thereto remaining in his hands. A beneficiary of
a trust to whom the trustee has distributed property received from a personal
representative is a distributee of the personal representative.
"Domiciliary foreign fiduciary" means any fiduciary who has received
letters, or has been appointed, or is authorized to act as a fiduciary, in the
jurisdiction in which the decedent was domiciled at the time of his death, in
which the ward is domiciled or in which is located the principal place of the
administration of a trust. "Estate" means all of the property of a
decedent, minor or incapacitated individual, trust or other person whose
affairs are subject to this title as the property is originally constituted and
as it exists from time to time during administration. "Fiduciary"
includes executors, general administrators of an intestate estate,
administrators with the will annexed, substituted administrators, substituted
administrators with the will annexed, guardians, substituted guardians,
trustees, substituted trustees and, unless restricted by the subject or
context, temporary administrators, administrators pendente lite, administrators
ad prosequendum, administrators ad litem and other limited fiduciaries.
"Governing instrument" means a deed, will, trust, insurance or
annuity policy, account with the designation "pay on death" (POD) or
"transfer on death" (TOD), security registered in beneficiary form
with the designation "pay on death" (POD) or "transfer on
death" (TOD), pension, profit-sharing, retirement or similar benefit plan,
instrument creating or exercising a power of appointment or a power of
attorney, or a dispositive, appointive, or nominative instrument of any similar
type. "Guardian" means a person who has qualified as a guardian of
the person or estate of a minor or incapacitated individual pursuant to
testamentary or court appointment, but excludes one who is merely a guardian ad
litem. "Heirs" means those persons, including, but not limited to,
the surviving spouse and the descendants of the decedent, who are entitled
under the statutes of intestate succession to the property of a decedent.
2.
N.J.S.3B:1-2 is amended to read as follows:
Definitions
I to Z. 3B:1-2. "Incapacitated individual" means an individual who is
impaired by reason of mental illness or mental deficiency to the extent that he
lacks sufficient capacity to govern himself and manage his affairs. The term
incapacitated individual is also used to designate an individual who is
impaired by reason of physical illness or disability, chronic use of drugs,
chronic alcoholism or other cause (except minority) to the extent that he lacks
sufficient capacity to govern himself and manage his affairs. The terms
incapacity and incapacitated individual refer to the state or condition of an
incapacitated individual as hereinbefore defined. "Issue" of an
individual means a descendant as defined in N.J.S.3B:1-1. "Joint tenants
with the right of survivorship" means co-owners of property held under
circumstances that entitle one or more to the whole of the property on the
death of the other or others, but excludes forms of co-ownership in which the
underlying ownership of each party is in proportion to that partys
contribution. "Local administration" means administration by a
personal representative appointed in this State. "Local fiduciary"
means any fiduciary who has received letters in this State and excludes foreign
fiduciaries who acquire the power of local fiduciary pursuant to this title.
"Minor" means an individual who is under 18 years of age.
"Nonresident decedent" means a decedent who was domiciled in another
jurisdiction at the time of his death. "Parent" means any person
entitled to take or who would be entitled to take if the child, natural or
adopted, died without a will, by intestate succession from the child whose
relationship is in question and excludes any person who is a stepparent,
resource family parent or grandparent. "Per capita." If a governing
instrument requires property to be distributed "per capita," the
property is divided to provide equal shares for each of the takers, without
regard to their shares or the right of representation. "Payor" means
a trustee, insurer, business entity, employer, government, governmental agency
or subdivision, or any other person authorized or obligated by law or a
governing instrument to make payments. "Person" means an individual
or an organization. "Per Stirpes." If a governing instrument requires
property to be distributed "per stirpes," the property is divided
into as many equal shares as there are: (1) surviving children of the
designated ancestor; and (2) deceased children who left surviving descendants.
Each surviving child is allocated one share. The share of each deceased child
with surviving descendants is divided in the same manner, with subdivision
repeating at each succeeding generation until the property is fully allocated
among surviving descendants. "Personal representative" includes
executor, administrator, successor personal representative, special
administrator, and persons who perform substantially the same function under
the law governing their status. "General personal representative"
excludes special administrator. "Representation; Per Capita at Each
Generation." If an applicable statute or a governing instrument requires
property to be distributed "by representation" or "per capita at
each generation," the property is divided into as many equal shares as
there are: (1) surviving descendants in the generation nearest to the
designated ancestor which contains one or more surviving descendants; and (2)
deceased descendants in the same generation who left surviving descendants, if
any. Each surviving descendant in the nearest generation is allocated one
share. The remaining shares, if any, are combined and then divided in the same
manner among the surviving descendants of the deceased descendants, as if the
surviving descendants who were allocated a share and their surviving
descendants had predeceased the designated ancestor. "Resident
creditor" means a person domiciled in, or doing business in this State,
who is, or could be, a claimant against an estate. "Security"
includes any note, stock, treasury stock, bond, mortgage, financing statement,
debenture, evidence of indebtedness, certificate of interest or participation
in an oil, gas or mining title or lease or in payments out of production under
the title or lease, collateral, trust certificate, transferable share, voting
trust certificate or, in general, any interest or instrument commonly known as
a security or as a security interest or any certificate of interest or
participation, any temporary or interim certificate, receipt or certificate of
deposit for, or any warrant or right to subscribe to or purchase, any of the
foregoing. "Stepchild" means a child of the surviving, deceased, or
former spouse of the testator. "Successor personal representative"
means a personal representative, other than a special administrator, who is
appointed to succeed a previously appointed personal representative.
"Successors" means those persons, other than creditors, who are
entitled to real and personal property of a decedent under his will or the laws
governing intestate succession. "Testamentary trustee" means a
trustee designated by will or appointed to exercise a trust created by will.
"Testator" includes an individual and means male or female.
"Trust" includes any express trust, private or charitable, with
additions thereto, wherever and however created. It also includes a trust
created by judgment under which the trust is to beadministered in the manner of
an express trust. "Trust" excludes other constructive trusts, and it
excludes resulting trusts, guardianships, personal representatives, trust
accounts created under the "Multiple-party Deposit Account Act,"
P.L.1979, c.491 (C.17:16I-1 et seq.), gifts to minors under the "New
Jersey Uniform Gifts to Minors Act," P.L.1963, c.177 (C.46:38-13 et seq.),
or the "New Jersey Uniform Transfers to Minors Act," R.S.46:38A-1 et
seq. business trusts providing for certificates to be issued to beneficiaries,
common trusts, security arrangements, liquidation trusts, and trusts for the
primary purpose of paying debts, dividends, interest, salaries, wages, profits,
pensions or employee benefits of any kind, and any arrangement under which a
person is nominee or escrowee for another. "Trustee" includes an
original, additional or successor trustee, whether or not appointed or
confirmed by court. "Ward" means an individual for whom a guardian is
appointed or an individual under the protection of the court. "Will"
means the last will and testament of a testator or testatrix and includes any
codicil and any testamentary instrument that merely appoints an executor,
revokes or revises another will, nominates a guardian, or expressly excludes or
limits the right of a person or class to succeed to property of the decedent
passing by intestate succession.
3.
N.J.S.3B:1-3 is amended to read as follows:
Devolution
of property upon death. 3B:1-3. Upon the death of an individual, his real and
personal property devolves to the persons to whom it is devised by his will or
to those indicated as substitutes for them in cases involving lapse,
renunciation, or other circumstances affecting the devolution of testate
estates, or in the absence of testamentary disposition, to his heirs, or to
those indicated as substitutes for them in cases involving renunciation or other
circumstances affecting devolution of intestate estates, subject to rights of
creditors and to administration.
4.
N.J.S.3B:2-5 is amended to read as follows:
Disputes
or doubts in proceedings before the surrogate. 3B:2-5. In the event of any
dispute or doubt arising before the surrogate or in the surrogates court,
neither the surrogate nor the court shall take any further action therein,
except in accordance with the order of the Superior Court.
5.
N.J.S.3B:2-6 is amended to read as follows:
Oath;
affidavit; deposition or proof. 3B:2-6. Any oath, affidavit, deposition or
proof required to be made or taken in any proceeding before a surrogate, the
surrogates court or in the Superior Court, or necessary or proper to be used
before the surrogate or the court, may be made and taken before the surrogate
or before any individual authorized by law to administer oaths. Qualifications
of executors and administrators and acceptances of trusteeships and
guardianships may be taken as provided by the rules of the Supreme Court.
6.
N.J.S.3B:2-7 is amended to read as follows:
Issuance
of subpoenas by surrogate. 3B:2-7. A surrogate may issue process of subpoenas
to any person within the State to appear and give evidence in any matter
pending before the surrogates court.
7.
N.J.S.3B:2-8 is amended to read as follows:
Penalty
for failure to obey subpoena. 3B:2-8. Any person subpoenaed as a witness by a
surrogate, who does not appear pursuant thereto, or appearing refuses to be
sworn or give evidence, without reasonable cause assigned, shall, for every
such default or refusal, be subject to a fine of not more than $50.00, as the
surrogates court issuing the subpoena shall by judgment determine proper to
impose. The fine, when collected, shall be paid to the county. In default of
the payment of a fine so imposed, the surrogates court by its judgment may
commit the witness to the county jail of the county until it is paid or he is
sooner discharged. The judgment of the surrogates court imposing a fine or
committing a witness to jail shall be reviewable by the Superior Court in the
same manner as other judgments of the court are reviewed.
8.
N.J.S.3B:3-1 is amended to read as follows:
Individuals
competent to make a will and appoint a testamentary guardian. 3B:3-1. Any
individual 18 or more years of age who is of sound mind may make a will and may
appoint a testamentary guardian.
9.
N.J.S.3B:3-2 is amended to read as follows:
Execution;
Witnessed Wills; Writings Intended as Wills. 3B:3-2. a. Except as provided in
subsection b. and in N.J.S.3B:3-3, a will shall be: (1) in writing; (2) signed
by the testator or in the testators name by some other individual in the
testators conscious presence and at the testators direction; and (3) signed by
at least two individuals, each of whom signed within a reasonable time after
each witnessed either the signing of the will as described in paragraph (2) or
the testators acknowledgment of that signature or acknowledgment of the will.
b. A will that does not comply with subsection a. is valid as a writing
intended as a will, whether or not witnessed, if the signature and material
portions of the document are in the testators handwriting. c. Intent that the
document constitutes the testators will can be established by extrinsic
evidence, including writings intended as wills, portions of the document that
are not in the testators handwriting.
10.
N.J.S.3B:3-3 is amended to read as follows:
Writings
intended as wills. 3B:3-3. Although a document or writing added upon a document
was not executed in compliance with N.J.S.3B:3-2, the document or writing is
treated as if it had been executed in compliance with N.J.S.3B:3-2 if the
proponent of the document or writing establishes by clear and convincing
evidence that the decedent intended the document or writing to constitute: (1)
the decedents will; (2) a partial or complete revocation of the will; (3) an
addition to or an alteration of the will; or (4) a partial or complete revival
of his formerly revoked will or formerly revoked portion of the will.
11.
N.J.S.3B:3-4 is amended to read as follows:
Making
will self-proved at time of execution. 3B:3-4. Any will executed on or after
September 1, 1978 may be simultaneously executed, attested, and made
self-proved, by acknowledgment thereof by the testator and affidavits of the
witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to
take acknowledgments and proofs of instruments entitled to be recorded under
the laws of this State, in substantially the following form: I, .........., the
testator, sign my name to this instrument this .... day of ......., 20..., and
being duly sworn, do hereby declare to the undersigned authority that I sign
and execute this instrument as my last will and that I sign it willingly (or
willingly direct another to sign for me), that I execute it as my free and
voluntary act for the purposes therein expressed, and that I am 18 years of age
or older, of sound mind, and under no constraint or undue influence.
.........................................
Testator
We,.............,
the witnesses, sign our names to this instrument, and, being duly sworn, do
hereby declare to the undersigned authority that the testator signs and
executes this instrument as the testators last will and that the testator signs
it willingly (or willingly directs another to sign for him), and that each of
us, in the presence and hearing of the testator, hereby signs this will as
witness to the testators signing, and that to the best of our knowledge the
testator is 18 years of age or older, of sound mind, and under no constraint or
undue influence. ........................................ Witness
........................................ Witness The State of................
County of................... Subscribed, sworn to and acknowledged before me by
................, the testator and subscribed and sworn to before me by
............ and ............., witnesses, this ............. day
of................. (Signed).............................
................................ (Official capacity of officer)
12.
N.J.S.3B:3-5 is amended to read as follows:
Making
will self-proved subsequent to time of execution. 3B:3-5. A will executed in
compliance with N.J.S.3B:3-2 may at any time subsequent to its execution be
made self-proved by the acknowledgment thereof by the testator and the
affidavits of the witnesses, each made before an officer authorized pursuant to
R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be
recorded under the laws of this State, attached or annexed to the will in
substantially the following form:
The
State of
County
of
We,
, and , the testator and the witnesses, respectively, whose names are signed to
the attached or foregoing instrument, being duly sworn, do hereby declare to
the undersigned authority that the testator signed and executed the instrument
as his last will and that the testator had signed willingly (or willingly
directed another to sign for the testator), and that he executed it as the
testators free and voluntary act for the purposes therein expressed, and that
each of the witnesses, in the presence and hearing of the testator, signed the
will as witness and that to the best of his knowledge the testator was at that
time 18 years of age or older, of sound mind and under no constraint or undue
influence.
Testator
Witness
Witness
Subscribed,
sworn to and acknowledged before me by , the testator, and subscribed and sworn
to before me by and , witnesses, this day of .
(Signed)
(Official
capacity of officer)
13.
N.J.S.3B:3-7 is amended to read as follows:
Who
may witness a will. 3B:3-7. Any individual generally competent to be a witness
may act as a witness to a will and to testify concerning execution thereof.
14.
N.J.S.3B:3-11 is amended to read as follows:
Identifying
devise of tangible personal property by separate writing. 3B:3-11. A will may
refer to a written statement or list to dispose of items of tangible personal
property not otherwise specifically disposed of by the will, other than money.
To be admissible under this section as evidence of the intended disposition,
the writing must be either in the handwriting of the testator or be signed by
the testator and must describe the items and the devisees with reasonable
certainty. The writing may be referred to as one to be in existence at the time
of the testators death; it may be prepared before or after the execution of the
will; it may be altered by the testator after its preparation; and it may be a
writing which has no significance apart from its effect upon the dispositions
made by the will.
15.
N.J.S.3B:3-12 is amended to read as follows:
Acts
and events of independent significance. 3B:3-12. A will may dispose of property
by reference to acts and events which have significance apart from their effect
upon the dispositions made by the will, whether they occur before or after the
execution of the will or before or after the testators death. The execution or
revocation of a will of another individual is such an event.
16.
N.J.S.3B:3-13 is amended to read as follows:
Revocation
by writing or by act. 3B:3-13. A will or any part thereof is revoked: a. By the
execution of a subsequent will that revokes the previous will or part expressly
or by inconsistency; or b. By the performance of a revocatory act on the will,
if the testator performed the act with the intent and for the purpose of
revoking the will or part or if another individual performed the act in the
testators conscious presence and by the testators direction. For purposes of
this subsection, "revocatory act on the will" includes burning,
tearing canceling, obliterating or destroying the will or any part of it. A
burning, tearing or cancelling is a "revocatory act on the will,"
whether or not the burn, tear, or cancellation touched any of the words on the
will. (1) If a subsequent will does not expressly revoke a previous will, the
execution of the subsequent will wholly revokes the previous will by
inconsistency if the testator intended the subsequent will to replace rather
than supplement the previous will. (2) The testator is presumed to have
intended a subsequent will to replace rather than supplement a previous will if
the subsequent will makes a complete disposition of the testators estate. If
this presumption arises and is not rebutted by clear and convincing evidence,
the previous will is revoked; only the subsequent will is operative on the
testators death. (3) The testator is presumed to have intended a subsequent
will to supplement rather than replace a previous will if the subsequent will does
not make a complete disposition of the testators estate. If this presumption
arises and is not rebutted by clear and convincing evidence, the subsequent
will revokes the previous will only to the extent the subsequent will is
inconsistent with the previous will; each will is fully operative on the
testators death to the extent they are not inconsistent.
17.
N.J.S.3B:3-14 is amended to read as follows:
Revocation
of probate and non-probate transfers by divorce or annulment; revival by
remarriage to former spouse. 3B:3-14. a. Except as provided by the express
terms of a governing instrument, a court order, or a contract relating to the
division of the marital estate made between the divorced individuals before or
after the marriage, divorce or annulment, a divorce or annulment: (1) revokes
any revocable: (a) dispositions or appointment of property made by a divorced
individual to his former spouse in a governing instrument and any disposition
or appointment created by law or in a governing instrument to a relative of the
divorced individuals former spouse; (b) provision in a governing instrument
conferring a general or special power of appointment on the divorced
individuals former spouse, or on a relative of the divorced individuals former
spouse; and (c) nomination in a governing instrument of a divorced individuals
former spouse or a relative of the divorced individuals former spouse to serve
in any fiduciary or representative capacity; and (2) severs the interests of
the former spouses in property held by them at the time of the divorce or
annulment as joint tenants with the right of survivorship or as tenants by the
entireties, transforming the interests of the former spouses into tenancies in
common. In the event of a divorce or annulment, provisions of a governing
instrument are given effect as if the former spouse and relatives of the former
spouse disclaimed all provisions revoked by this section or, in the case of a
revoked nomination in a fiduciary or representative capacity, as if the former
spouse and relatives of the former spouse died immediately before the divorce
or annulment. If provisions are revoked solely by this section, they are
revived by the divorced individuals remarriage to the former spouse or by the
revocation, suspension or nullification of the divorce or annulment. No change
of circumstances other than as described in this section and in N.J.S.3B:7-1
effects a revocation or severance. A severance under paragraph (2) of
subsection a. does not affect any third-party interest in property acquired for
value and in good faith reliance on an apparent title by survivorship in the
survivor of the former spouse unless a writing declaring the severance has been
noted, registered, filed, or recorded in records appropriate to the kind and
location of the property which are relied upon, in the ordinary course of
transactions involving such property, as evidence of ownership. b. For purposes
of this section: (1) "divorce or annulment" means any divorce or
annulment, or other dissolution or invalidity of a marriage including a
judgment of divorce from bed and board; (2) "governing instrument"
means a governing instrument executed by the divorced individual before the
divorce or annulment; (3) "divorced individual "includes an individual
whose marriage has been annulled; and (4) "relative of the divorced
individuals former spouse" means an individual who is related to the
divorced individuals former spouse by blood, adoption or affinity and who,
after the divorce or annulment, is not related to the divorced individual by
blood, adoption or affinity. c. This section does not affect the rights of any
person who purchases property from a former spouse for value and without
notice, or receives a payment or other item of property in partial or full
satisfaction of a legally enforceable obligation, which the former spouse was
not entitled to under this section, but the former spouse is liable for the
amount of the proceeds or the value of the property to the person who is
entitled to it under this section. d. A payor or other third party making
payment or transferring an item of property or other benefit according to the
terms of a governing instrument affected by a divorce or annulment is not
liable by reason of this section unless prior to such payment or transfer it
has received at its home or principal address written notice of a claimed
revocation, severance or forfeiture under this section.
18.
N.J.S.3B:3-15 is amended to read as follows:
Revival
of revoked will. 3B:3-15. a. Except as otherwise provided in N.J.S.3B:3-14 or
as provided in subsections b., c. and d. of this section, a revoked will or
codicil shall not be revived except by reexecution or by a duly executed
codicil expressing an intention to revive it. b. If a subsequent will that
wholly revoked a previous will is thereafter revoked by a revocatory act
described in N.J.S.3B:3-13, the previous will remains revoked unless it is
revived. The previous will is revived if there is clear and convincing evidence
from the circumstances of the revocation of the subsequent will or from the
testators contemporary or subsequent declarations that the testator intended
the previous will to take effect as executed. c. If a subsequent will that
partly revoked a previous will is thereafter revoked by a revocatory act
described in N.J.S.3B:3-13, a revoked part of the previous will is revived
unless there is clear and convincing evidence from the circumstances of the
revocation of the subsequent will or from the testators contemporary or
subsequent declarations that the testator did not intend the revoked part to
take effect as executed. d. If a subsequent will that revoked a previous will
in whole or in part is thereafter revoked by another, later will, the previous
will remains revoked in whole or in part, unless it or its revoked part is
revived. The previous will or its revoked part is revived to the extent it
appears from the terms of the later will that the testator intended the
previous will to take effect.
19.
N.J.S.3B:3-17 is amended to read as follows:
Probate
of will and grant of letters. 3B:3-17. The surrogates of the several counties
or the Superior Court may take depositions to wills admit the same to probate,
and grant thereon letters testamentary or letters of administration with the
will annexed.
20.
N.J.S.3B:3-19 is amended to read as follows:
Proof
required to probate will. 3B:3-19. A will executed as provided in N.J.S.3B:3-2
may be admitted to probate by the surrogate upon the proof of one of the
attesting witnesses or by some other individual having knowledge of the facts
relating to the proper execution of the will by the testator and its
attestation by one of the witnesses. A will executed and acknowledged in the
manner provided in N.J.S.3B:3-4, or N.J.S.3B:3-5 may be admitted to probate by
the surrogate without further affidavit, deposition or proof. A writing
intended as a will may be admitted to probate only in the manner provided by
the Rules Governing the Courts of the State of New Jersey.
21.
N.J.S.3B:3-20 is amended to read as follows:
Probate
of a will of testator who died in military service or within 2 years of
discharge. N.J.S.3B:3-20. When a resident of this State dies while a member of
the armed forces of the United State or within 2 years from the date of his
discharge from the armed forces and no witness to his will is available in this
State to prove the will, either because of death, incapacity, nonresidence,
absence, or for any other reason, the will shall be admitted to probate upon
proof of the signature of the testator by any two individuals, provided the
will was validly executed as provided in N.J.S.3B:3-9, and the will would have
been admitted to probate if the witnesses were dead.
22.
N.J.S.3B:3-24 is amended to read as follows:
Where
a will of a resident is to be probated; effect of failure to probate. 3B:3-24.
The will of any individual resident within any county of this State at his
death may be admitted to probate in the surrogates court of the county or in
the Superior Court. If the will of any individual resident within the State at
his death is probated outside the State, it shall be without effect unless or
until probate is granted within the State.
23.
N.J.S.3B:3-26 is amended to read as follows:
Probate
of will of nonresident probated in another state or country. 3B:3-26. When the
will of any individual not resident in this State at his death shall have been
admitted to probate in any state of the United States or other jurisdiction or
country, the surrogates court of any county may admit it to probate for any
purpose and issue letters thereon, provided the will is valid under the laws of
this State.
24.
N.J.S.3B:3-28 is amended to read as follows:
Probate
of will of nonresident decedent where property situated in New Jersey. 3B:3-28.
Where the will of any individual not resident in this State at his death has
not been admitted to probate in the state, jurisdiction or country in which he
then resided and no proceeding is there pending for the probate of the will,
and he died owning real estate situate in any county of this State or personal
property, or evidence of the ownership thereof, situate therein at the time of
probate, the Superior Court or the surrogates court may admit the will to
probate and grant letters thereon.
25.
N.J.S.3B:3-28.1 is amended to read as follows:
Probate
of will of nonresident where laws of decedents domicile are discriminatory.
3B:3-28.1. Where the will of any individual who is not resident in this State
at the time of his death has not been admitted to probate in the state in which
he resided and no proceeding is there pending for the probate of the will, the
Superior Court may admit the will to probate and grant letters thereon if the
laws of that state discriminate against residents of New Jersey either as a
beneficiary or as a fiduciary.
26.
N.J.S.3B:3-31 is amended to read as follows:
Judgment
for probate; conclusive effect on title to real property after 7 years.
3B:3-31. Where judgment has been or shall be entered by any surrogates court in
this State or Superior Court of the State, admitting to probate the will of any
individual whether or not a resident of the State at his death and 7 years have
elapsed after the judgment, the judgment unless set aside, shall, as to all
matters adjudicated thereby, be conclusive upon the title to real estate.
27.
N.J.S.3B:3-32 is amended to read as follows:
Requirement
of survival by 120 hours; exceptions; survivorship with respect to future
interests. 3B:3-32. a. Except as provided in subsections b. and c., for
purposes of construing a will, trust agreement, or other governing instrument,
an individual who is not established by clear and convincing evidence to have
survived an event, including the death of another individual, by 120 hours is
deemed to have predeceased the event. b. If it is not established by clear and
convincing evidence that one of two co-owners with right of survivorship
survived the other co-owner by 120 hours, one-half of the property passes as if
one had survived by 120 hours and one-half as if the other had survived by 120
hours. c. If there are more than two co-owners and it is not established by
clear and convincing evidence that at least one of them survived the others by
120 hours, the property passes in the proportion that one bears to the whole
number of co-owners. d. The 120 hour survival requirement of subsections a., b.
and c. shall not apply if: (1) the will, trust agreement, or other governing
instrument, contains some language applicable to the event dealing explicitly
with simultaneous deaths or deaths in a common disaster, or requiring survival
for a stated time period; (2) application would cause a non-vested property
interest or power of appointment to be invalid under a rule against
perpetuities concerning an interest created prior to the enactment of P.L.
1999, c. 159 (effective on July 8, 1999); or (3) it is established by clear and
convincing evidence that application to multiple governing instruments would
result in an unintended failure or duplication of a disposition. e. For
purposes of this section, "co-owners with right of survivorship"
includes joint tenants, tenants by the entireties, and other co-owners of
property or accounts held under circumstances that entitle one or more to the
whole of the property or account on the death of the other or others. To the
extent this section is inconsistent with the "Uniform Simultaneous Death
Law" (N.J.S.3B:6-1 et seq.), the provisions of this section shall apply.
C.3B:3-33.1
Testators intention; settlors intention; rules of construction applicable to
wills, trusts and other governing instruments. 28. a. The intention of a
testator as expressed in his will controls the legal effect of his
dispositions, and the rules of construction expressed in N.J.S.3B:3-34 through
N.J.S.3B:3-48 shall apply unless the probable intention of the testator, as
indicated by the will and relevant circumstances, is contrary. b. The intention
of a settlor as expressed in a trust, or of an individual as expressed in a
governing instrument, controls the legal effect of the dispositions therein and
the rules of construction expressed in N.J.S.3B:34 through N.J.S.3B:3-48 shall
apply unless the probable intent of such settlor or of such individual, as
indicated by the trust or by such governing instrument and relevant
circumstances, is contrary. For purposes of this Title, when construing each of
these rules of construction the word "testator" shall include but not
be limited to a settlor or a creator of any other governing instrument; the
word "will" shall include a trust or other governing instrument; the
word "devise" shall include any disposition in a trust or other
governing instrument; and the word "devisee" shall include a
beneficiary of a trust or other governing instrument.
29.
N.J.S.3B:3-33 is amended to read as follows:
Choice
of law as to meaning and effect of wills; testators intention; rules of
construction. 3B:3-33. The meaning and legal effect of a disposition in a will,
trust or other governing instrument shall be determined by the local law of a
particular state selected in the will, trust or other governing instrument,
unless the application of that law is contrary to the provisions relating to
the elective share described in N.J.S.3B:8-1 et seq. or any other public policy
of this State otherwise applicable to the disposition.
30.
N.J.S.3B:3-34 is amended to read as follows:
Will
construed to pass all property of testator including after-acquired property.
3B:3-34. Unless a will expressly provides otherwise, it is construed to pass
all property the testator owns at death including property acquired after the
execution of the will, and all property acquired by the estate after the
testators death.
31.
N.J.S.3B:3-35 is amended to read as follows:
Anti-lapse;
deceased devisee; class gifts. 3B:3-35. If a devisee who is a grandparent,
stepchild or a lineal descendant of a grandparent of the testator is dead at
the time of the execution of the will, fails to survive the testator, or is
treated as if he predeceased the testator, any descendants of the deceased
devisee who survives the testator by 120 hours take by representation in place
of the deceased devisee. One who would have been a devisee under a class gift
if he had survived the testator is treated as a devisee for purposes of this
section whether his death occurred before or after the execution of the will.
For purposes of this section, a"stepchild" means a child of the
surviving, deceased or former spouse of the testator.
32.
N.J.S.3B:3-36 is amended to read as follows:
Failure
of testamentary provision; residuary devise to two or more residuary devisees;
death of one or more before testator. 3B:3-36. Except as provided in
N.J.S.3B:3-35: a. a devise, other than a residuary devise, that fails for any
reason becomes a part of the residue. b. if the residue is devised to two or
more persons, unless a contrary intention shall appear by the will, the share
of a residuary devise that fails for any reason passes to the other residuary
devisee, or to other residuary devisees in proportion to the interest of each
in the remaining part of the residue.
33.
N.J.S.3B:3-38 is amended to read as follows:
Construction
of words "die without issue" or "die without descendants".
3B:3-38. In a devise of real or personal property the words "die without
issue" or "die without descendants" or "die without lawful
issue" or "die without lawful descendants" or "have no
issue" or "have no descendants" or other words which may import
a want or failure of issue or descendants of an individual in his lifetime, or
at his death, or an indefinite failure of his issue or descendants, shall be
construed to mean a failure of issue or descendants at the death of the
individual, unless a contrary intention shall otherwise appear by the will.
34.
N.J.S.3B:3-41 is amended to read as follows:
Issue
and descendants to take by representation. 3B:3-41. Where under any will or
trust provision is made for the benefit of issue and descendants and no
contrary intention is expressed, the issue or descendants shall take by
representation.
35.
N.J.S.3B:3-42 is amended to read as follows:
Increase
in securities, accessions. 3B:3-42. a. If a testator executes a will that
devises securities and the testator then owned securities that meet the
description in the will, the devise includes additional securities owned by the
testator at death to the extent the additional securities were acquired by the
testator after the will was executed as a result of the testators ownership of
the described securities and are securities of any of the following types: (1)
securities of the same organization acquired by reason of action initiated by
the organization or any successor, related, or acquiring organization,
excluding any acquired by exercise of purchase options; (2) securities of
another organization acquired as a result of a merger, consolidation,
reorganization, or other distribution by the organization or any successor,
related, or acquiring organization; or (3) securities of the same organization
acquired as a result of a plan of reinvestment. b. Distributions in cash
declared and payable as of a record date before death with respect to a
described security, whether paid before or after death, are not part of the
devise.
36.
N.J.S.3B:3-43 is amended to read as follows:
Nonademption
of specific devise; sale by or payment of condemnation award or insurance
proceeds to guardian of testator or agent. 3B:3-43. If specifically devised
property is sold or mortgaged by a guardian for a testator, or by an agent
acting within the authority of a durable power of attorney for an incapacitated
individual, or if a condemnation award, insurance proceeds or recovery for
injury to the property are paid to a guardian for a testator or such agent as a
result of condemnation, fire or casualty, the specific devisee has the right to
a general pecuniary devise equal to the net sale price, the amount of the
unpaid loan, the condemnation award, the insurance proceeds or the recovery.
This section does not apply if subsequent to the sale, mortgage, condemnation,
casualty, or recovery the guardianship is terminated or the durable power of
attorney is revoked by the testator and the testator survives by 1 year the
judgment terminating the guardianship or such revocation. The right of the
specific devisee under this section is reduced by any right he has under N.J.S.3B:3-44.
37.
N.J.S.3B:3-44 is amended to read as follows:
Specific
devise; right of devisee after sale, condemnation, casualty loss or
foreclosure. 3B:3-44. A specific devisee has the right to the remaining
specifically devised property in the testators estate at death and: a. Any
balance of the purchase price (together with any security interest) owing from
a purchaser to the testator at death by reason of sale of the property; b. Any
amount of a condemnation award for the taking of the property unpaid at death;
c. Any proceeds unpaid at death on fire or casualty insurance on, or other
recovery for injury to, the property; and d. Property owned by testator at his
death as a result of foreclosure, or obtained in lieu of foreclosure, of the
security for a specifically devised obligation.
38.
N.J.S.3B:3-46 is amended to read as follows:
Ademption
by satisfaction. 3B:3-46. a. Property which a testator gave in his lifetime to
a person is treated as a satisfaction of a devise to that person in whole or in
part, only if the will provides for deduction of the lifetime gift, or the
testator declares in a contemporaneous writing that the value of the gift is to
be deducted from the value of the devise or is in satisfaction of the devise,
or the devisee acknowledges in writing that the gift is in satisfaction of the
devise or that its value is to be deducted from the value of the devise. b. For
purpose of partial satisfaction, property given during lifetime is valued as of
the time the devisee came into possession or enjoyment of the property or as of
the time of death of the testator, whichever occurs first. c. If the devisee
fails to survive the testator, in the case of a substituted devise or a devise
saved from lapse, the gift is treated as a full or partial satisfaction of the
devise, as appropriate, unless the testators contemporaneous writing provides
otherwise.
39.
N.J.S.3B:3-48 is amended to read as follows:
Construction
of generic terms included in class gift terminology. 3B:3-48. a. Adopted
individuals and individuals born out of wedlock, and their respective
descendants if appropriate to the class, are included in class gifts and other
terms of relationship in accordance with the rules for intestate succession.
Terms of relationship that do not differentiate relationships by the half blood
from those by the whole blood, such as "brothers,"
"sisters," "nieces," or "nephews," are construed
to include both types of relationships. b. In addition to the requirements of
subsection a., in construing a donative disposition by a transferor who is not
the natural parent, an individual born to the natural parent is not considered
the child of that parent unless the individual lived while a minor as a regular
member of the household of that natural parent or of that parents parent,
brother, sister, spouse or surviving spouse. c. In addition to the requirements
of subsection a., in construing a dispositive provision by a transferor who is
not the adoptive parent, an adopted individual is not considered the child of
the adoptive parent unless the adopted individual lived while a minor, either
before or after the adoption, as a regular member of the household of the
adoptive parent.
40.
N.J.S.3B:4-2 is amended to read as follows:
Devise
to trustee of trust created other than by testators will. 3B:4-2. A will may
validly devise property to the trustee of a trust established or a trust which
will be established: (1) during the testators lifetime by the testator, or by
the testator and some other person, or by some other person including a funded
or unfunded life insurance trust, although the settlor has reserved any or all
rights of ownership of the insurance contracts, or (2) at the testators death
by the testators devise to the trustee, if the trust is identified in the
testators will, and its terms are set forth in a written instrument, other than
a will, executed before, concurrently with, or after the execution of the
testators will or in another individuals will, executed before, concurrently
with or after the execution of the testators will, if that other individual has
predeceased the testator, regardless of the existence, size, or character of
the corpus of the trust.
41.
N.J.S.3B:4-3 is amended to read as follows:
Devise
not invalidated because trust is amendable or revocable. 3B:4-3. A devise made
as provided in N.J.S.3B:4-2 shall not be invalid because the trust is amendable
or revocable, or because the trust was amended after the execution of the will
or the testators death.
42.
N.J.S.3B:4-4 is amended to read as follows:
Administration
of trust. 3B:4-4. Unless the testators will provides otherwise, property
devised to a trust described in N.J.S.3B:4-2 shall not be deemed to be held
under a testamentary trust of the testator, but shall become a part of the
trust to which it is devised and shall be administered and disposed of in
accordance with the provisions of the governing instrument setting forth the
terms of the trust, including any amendments thereto made before or after the
testators death.
43.
N.J.S.3B:4-5 is amended to read as follows: Lapse of devise. 3B:4-5. Unless the
testators will provides otherwise, a revocation or termination of the trust
before the testators death causes the devise to lapse.
44.
N.J.S.3B:5-1 is amended to read as follows:
Requirement
that heir survive decedent by 120 hours. 3B:5-1. For the purposes of intestate
succession an individual who is not established by clear and convincing
evidence to have survived the decedent by 120 hours is deemed to have
predeceased the decedent. This section is not to be applied where its
application would result in a taking of intestate estate by the State.
45.
N.J.S.3B:5-2 is amended to read as follows:
Intestate
estate. 3B:5-2. a. Any part of the decedents estate not effectively disposed of
by his will passes by intestate succession to the decedents heirs as prescribed
in N.J.S.3B:5-3 through N.J.S.3B:5-14, except as modified by the decedents
will. b. A decedent by will may expressly exclude or limit the right of an
individual or class to succeed to property of the decedent passing by intestate
succession. If that individual or member of that class survives the decedent,
the share of the decedents intestate estate to which that individual or class
would have succeeded passes as if that individual or each member of that class
had disclaimed his intestate share.
46.
N.J.S.3B:5-3 is amended to read as follows:
Intestate
share of decedents surviving spouse. 3B:5-3. The intestate share of the
surviving spouse is: a. The entire intestate estate if: (1) No descendant or
parent of the decedent survives the decedent; or (2) All of the decedents
surviving descendants are also descendants of the surviving spouse and there is
no other descendant of the surviving spouse who survives the decedent; b. The
first 25% of the intestate estate, but not less than $50,000.00 nor more than
$200,000.00, plus three-fourths of any balance of the intestate estate, if no
descendant of the decedent survives the decedent, but a parent of the decedent
survives the decedent; c. The first 25% of the intestate estate, but not less
than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the
intestate estate: (1) If all of the decedents surviving descendants are also
descendants of the surviving spouse and the surviving spouse has one or more
surviving descendants who are not descendants of the decedent; or (2) If one or
more of the decedents surviving descendants is not a descendant of the
surviving spouse.
47.
N.J.S.3B:5-4 is amended to read as follows:
Intestate
shares of heirs other than surviving spouse. 3B:5-4. Any part of the intestate
estate not passing to the decedents surviving spouse under N.J.S.3B:5-3, or the
entire intestate estate if there is no surviving spouse, passes in the
following order to the individuals designated below who survive the decedent:
a. To the decedents descendants by representation; b. If there are no surviving
descendants, to the decedents parents equally if both survive, or to the
surviving parent; c. If there are no surviving descendants or parent, to the
descendants of the decedents parents or either of them by representation; d. If
there is no surviving descendant, parent or descendant of a parent, but the
decedent is survived by one or more grandparents, half of the estate passes to
the decedents paternal grandparents equally if both survive, or to the
surviving paternal grandparent, or to the descendants of the decedents paternal
grandparents or either of them if both are deceased, the descendants taking by
representation; and the other half passes to the decedents maternal relatives
in the same manner; but if there is no surviving grandparent, or descendant of
a grandparent on either the paternal or the maternal side, the entire estate
passes to the decedents relatives on the other side in the same manner as the
half. e. If there is no surviving descendant, parent, descendant of a parent,
or grandparent, but the decedent is survived by one or more descendants of
grandparents, the descendants take equally if they are all of the same degree
of kinship to the decedent, but if of unequal degree those of more remote
degree take by representation. f. If there are no surviving descendants of
grandparents, then the decedents step-children or their descendants by
representation.
48.
Section 1 of P.L. 2001, c. 109 (C.3B:5-5.1) is amended to read as follows:
C.3B:5-5.1
Diligent inquiry by fiduciary to find heirs. 1. If it appears to a fiduciary
administering an intestate estate that there may be individuals whose names or
addresses are unknown who may be entitled to participate in the distribution of
the estate, the fiduciary shall make a diligent inquiry, under the
circumstances, to identify and locate the individuals. The actions taken by a
fiduciary shall be those that have some reasonable likelihood of finding the
individuals and are reasonable in cost compared with the amount of the
distribution involved.
49.
N.J.S.3B:5-6 is amended to read as follows:
Determining
representation. 3B:5-6. a. As used in this section: (1) "Deceased descendant,"
"deceased parent," or "deceased grandparent" means a
descendant, parent or grandparent who either predeceased the decedent or is
deemed to have predeceased the decedent under N.J.S.3B:5-1. (2) "Surviving
descendant" means a descendant who neither predeceased the decedent nor is
deemed to have predeceased the decedent under N.J.S.3B:5-1. b. If, under
N.J.S.3B:5-4, a decedents intestate estate or part thereof passes "by
representation" to the decedents descendants, the estate or part thereof
is divided into as many equal shares as there are: (1) surviving descendants in
the generation nearest to the decedent which contains one or more surviving
descendants; and (2) deceased descendants in the same generation who left
surviving descendants, if any. Each surviving descendant in the nearest
generation is allocated one share. The remaining shares, if any, are combined
and then divided in the same manner among the surviving descendants of the
deceased descendants as if the surviving descendants who were allocated a share
and their surviving descendants had predeceased the decedent. c. If, under
section c. or d. of N.J.S.3B:5-4, a decedents intestate estate or a part
thereof passes "by representation" to the descendants of the
decedents deceased parents or either of them or to the descendants of the
decedents deceased paternal or maternal grandparents or either of them, the
estate or part thereof is divided into as many equal shares as there are: (1)
surviving descendants in the generation nearest the deceased parents or either
of them, or the deceased grandparents or either of them, that contains one or
more surviving descendants; and (2) deceased descendants in the same generation
who left surviving descendants, if any. Each surviving descendant in the nearest
generation is allocated one share. The remaining shares, if any, are combined
and then divided in the same manner among the surviving descendants of the
deceased descendants as if the surviving descendants who were allocated a
share, and their surviving descendants had predeceased the decedent.
50.
N.J.S.3B:5-8 is amended to read as follows:
After
born heirs. 3B:5-8. An individual in gestation at a particular time is treated
as living at that time if the person lives 120 hours or more after birth.
51.
N.J.S.3B:5-9 is amended to read as follows:
Adopted
child. 3B:5-9. If, for the purposes of intestate succession, a relationship of
parent and child must be established to determine succession by, through or
from an individual, the relationships and rights of a minor adopted child shall
be those as provided in section 14 of P.L.1977, c.367 (C.9:3-50), and the
relationships and rights of an adopted adult shall be as provided in
N.J.S.2A:22-3.
52.
N.J.S.3B:5-10 is amended to read as follows:
Establishment
of Parent-Child Relationship. 3B:5-10. If, for the purposes of intestate
succession, a relationship of parent and child must be established to determine
succession by, through, or from an individual, in cases not covered by
N.J.S.3B:5-9, an individual is the child of the individuals parents regardless
of the marital state of the individuals parents, and the parent and child
relationship may be established as provided by the "New Jersey Parentage
Act," P.L.1983, c.17 (C.9:17-38 et seq.). The parent and child relationship
may be established for purposes of this section regardless of the time
limitations set forth in subsection b. of section 8 of P.L.1983, c.17
(C.9:17-45).
53.
N.J.S.3B:5-11 is amended to read as follows:
Debt
to decedent. 3B:5-11. A debt owed to a decedent is not charged against the
intestate share of any individual except the debtor. If the debtor fails to
survive the decedent, the debt is not taken into account in computing the
intestate share of the debtors descendants.
54.
N.J.S.3B:5-12 is amended to read as follows:
Aliens
not disqualified; individuals related to decedent through two lines. 3B:5-12.
a. An individual is not disqualified to take as an heir because he or an
individual through whom he claims is or has been an alien. b. An individual who
is related to the decedent through two lines of relationship is entitled to
only a single share based on the relationship that would entitle the individual
to the larger share.
55.
N.J.S.3B:5-13 is amended to read as follows:
Advancements.
3B:5-13. a. If an individual dies intestate as to all or a portion of his
estate, property the decedent gave during the decedents lifetime to an
individual who, at the decedents death, is an heir is treated as an advancement
against the heirs intestate share only if: (1) the decedent declared in a
contemporaneous writing or the heir acknowledged in writing that the gift is an
advancement; or (2) the decedents contemporaneous writing or the heirs written
acknowledgment otherwise indicates that the gift is to be taken into account in
computing the division and distribution of the decedents intestate estate. b.
For purposes of subsection a., property advanced is valued as of the time the
heir came into possession or enjoyment of the property or as of the time of the
decedents death, whichever occurs first. c. If the recipient of the property
fails to survive the decedent, the property is not taken into account in
computing the division and distribution of the decedents intestate estate,
unless the decedents contemporaneous writing or the heirs written
acknowledgment provides otherwise.
56.
N.J.S.3B:5-15 is amended to read as follows:
Entitlement
of spouse; premarital will. 3B:5-15. a. If a testators surviving spouse married
the testator after the testator executed his will, the surviving spouse is
entitled to receive, as an intestate share, no less than the value ofthe share
of the estate he would have received if the testator had died intestate,
unless: (1) it appears from the will or other evidence that the will was made in
contemplation of the testators marriage to the surviving spouse; (2) the will
expresses the intention that it is to be effective notwithstanding any
subsequent marriage; or (3) the testator provided for the spouse by transfer
outside the will and the intent that the transfer be in lieu of a testamentary
provision is shown by the testators statements or is reasonably inferred from
the amount of the transfer or other evidence. b. In satisfying the share
provided by this section, devises made by the will to the testators surviving
spouse, if any, are applied first, and other devises shall abate ratably and in
proportion to their respective interests therein. c. Notwithstanding any other
provision of law to the contrary, this section shall apply only to wills executed
on or after September 1, 1978.
57.
N.J.S.3B:5-16 is amended to read as follows:
Omitted
children. 3B:5-16. a. Except as provided in subsection b., if a testator fails
to provide in his will for any of his children born or adopted after the
execution of his will, the omitted after-born or after-adopted child receives a
share in the estate as follows; (1) If the testator had no child living when he
executed the will, an omitted after-born or after-adopted child receives a
share in the estate equal in value to that which the child would have received
had the testator died intestate, unless the will devised all or substantially
all of the estate to the other parent of the omitted child or to a trust
primarily for the benefit of that other parent and that other parent survives
the testator and is entitled to take under the will. (2) If the testator had
one or more children living when he executed the will, and the will devised
property or an interest in property to one or more of the then-living children,
an omitted after-born or after-adopted child is entitled to share in the
testators estate as follows: (a) the portion of the testators estate in which
the omitted after-born or after-adopted child is entitled to share is limited
to devises made to the testators then-living children under the will. (b) the
omitted after-born or after-adopted child is entitled to receive the share of
the testators estate, as limited in subparagraph (a), that the child would have
received had the testator included all omitted after-born and after-adopted
children with the children to whom devises were made under the will and had
given an equal share of the estate to each child. (c) to the extent feasible,
the interest granted an omitted after-born or after-adopted child under this
section must be of the same character, whether equitable or legal, present or
future, as that devised to the testators then-living children under the will.
(d) in satisfying a share provided by this paragraph, devises to the testators
children who were living when the will was executed abate ratably. In abating
the devises of the then-living children, the court shall preserve to the
maximum extent possible the character of the testamentary plan adopted by the
testator. b. Neither subsection a. (1) nor subsection a. (2) applies if: (1) it
appears from the will that the omission was intentional; or (2) the testator
provided for the omitted after-born or after-adopted child by transfer outside
the will and the intent that the transfer be in lieu of a testamentary
provision is shown by the testators statements or is reasonably inferred from
the amount of the transfer or other evidence. c. If at the time of execution of
the will the testator fails to provide in his will for a living child solely
because he believes the child to be dead, the child is entitled to a share in
the estate as if the child were an omitted after-born or after-adopted child.
d. The share provided by subsection a. (1) shall be taken from devisees under
the will ratably and in proportion to their respective interests therein.
C.3B:7-1.1.
Effect of intentional killing on intestate succession, wills, trusts, joint
assets, life insurance and beneficiary designations. 58. a. An individual who
is responsible for the intentional killing of the decedent forfeits all
benefits under this title with respect to the decedents estate, including an
intestate share, an elective share, an omitted spouses or childs share, exempt
property and a family allowance. If the decedent died intestate, the decedents
intestate estate passes as if the killer disclaimed his share. b. The
intentional killing of the decedent: (1) revokes any revocable (a) disposition
or appointment of property made by decedent to the killer in a governing
instrument and any disposition or appointment created by law or in a governing
instrument to a relative of the killer, (b) provision in a governing instrument
conferring a general or special power of appointment on the killer or a
relative of the killer, and (c) nomination in a governing instrument of the
killer or a relative of the killer, nominating or appointing the killer or a
relative of the killer to serve in any fiduciary or representative capacity;
and (2) severs the interests of the decedent and the killer in property held by
them at the time of the killing as joint tenants with the right of survivorship
or as tenants by the entireties, transforming the interests of the decedent and
killer into tenancies in common. c. For purposes of this chapter: (1)
"governing instrument" means a governing instrument executed by the
decedent; and (2) "relative of the killer" means a person who is
related to the killer by blood, adoption or affinity and who is not related to
the decedent by blood or adoption or affinity.
C.3B:7-1.2
Effect of revocation. 59. Provisions of a governing instrument are given effect
as if the killer or relative of the killer disclaimed all provisions revoked by
this chapter or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the killer or relative of the killer predeceased
the decedent.
60.
N.J.S.3B:7-5 is amended to read as follows:
Other
acquisitions of property by decedents killer. 3B:7-5. Any other acquisition of
property or interest by the decedents killer or by a relative of the killer not
covered by this chapter shall be treated in accordance with the principle that
a killer or a relative of a killer cannot profit from the killers wrongdoing.
61.
N.J.S.3B:7-6 is amended to read as follows:
Effect
of final judgment of conviction. 3B:7-6. A final judgment of conviction
establishing responsibility for the intentional killing of the decedent is
conclusive for purposes of this chapter. In the absence of such a conviction the
court may determine by a preponderance of evidence whether the individual was
responsible for the intentional killing of the decedent for purposes of this
chapter.
62.
N.J.S.3B:7-7 is amended to read as follows:
Rights
of purchasers; protection of payors and other third parties. 3B:7-7. This
chapter does not affect the rights of any person who, before rights under this
chapter have been adjudicated, purchases from the killer for value and without
notice or receives a payment or other item of property in partial or full
satisfaction of a legally enforceable obligation which the killer would have
acquired except for this chapter, but the killer is liable for the amount of
the proceeds or the value of the property. A payor or other third party making
payment or transferring an item of property or other benefit according to the
terms of a governing instrument affected by an intentional killing is not
liable by reason of this chapter unless prior to such payment or transfer it
has received at its home office or principal address written notice of a
claimed forfeiture or revocation under this chapter.
63.
N.J.S.3B:9-1 is amended to read as follows:
Definitions.
3B:9-1. As used in this chapter: a. A "present interest" is one to
take effect in immediate possession, use or enjoyment without the intervention
of a preceding estate or interest or without being dependent upon the happening
of any event or thing; b. A "future interest" is one to take effect
in possession, use or enjoyment dependent upon the termination of an
intervening estate or interest or the happening of any event or thing; c. A
"devisee" means any person designated in a will to receive a devise,
but does not mean a trustee or trust designated in a will to receive a devise;
d. The "effective date" is the date on which a property right vests,
or a contract right arises, even though the right is subject to divestment; e.
"Joint property" is property that is owned by two or more persons
with rights of survivorship and includes a tenancy by the entirety, a joint
tenancy, a joint tenancy with rights of survivorship and a joint life estate
with contingent remainder in fee. For purposes of this chapter, joint property
is deemed to consist of a present interest and a future interest. The future
interest is the right of survivorship; f. "Joint tenant" is the
co-owner of joint property.
64.
N.J.S.3B:9-2 is amended to read as follows:
Disclaimer
of an interested party. 3B:9-2. a. Any person who is an heir, or a devisee or
beneficiary under a will or testamentary trust, or appointee under a power of
appointment exercised by a will or testamentary trust, including a person
succeeding to a disclaimed interest, may disclaim in whole or in part any
property or interest therein, including a future interest, by delivering and
filing a disclaimer under this chapter. b. Any person who is a grantee, donee,
surviving joint tenant, surviving party to a P.O.D. account or a trust deposit
account, person succeeding to a disclaimed interest, beneficiary under a
nontestamentary instrument or contract, appointee under a power of appointment
exercised by a nontestamentary instrument, or a beneficiary under an insurance
policy, may disclaim in whole or in part any such property or interest therein
by delivering, and if required by N.J.S. 3B:9-7, by filing, a written
disclaimer under this chapter. c. A surviving joint tenant may disclaim as a
separate interest any property or interest therein devolving to him by right of
survivorship without regard to the extent, if any, the surviving joint tenant
contributed to the creation of the joint property interest. d. A disclaimer may
be of a pecuniary or a fractional share, expressed as either a percentage or
dollar amount, specific property or any limited interest or estate.
65.
N.J.S.3B:9-3 is amended to read as follows:
Requirements
of a disclaimer. 3B:9-3. a. A disclaimer shall be in writing, signed and
acknowledged by the person disclaiming, and shall: (1) Describe the property,
interest, power or discretion disclaimed; (2) If the property interest
disclaimed is real property, identify the municipality and county in which the
real property is situated; and (3) Declare the disclaimer and the extent
thereof. b. The disclaimer shall be made within the time prescribed by section
68 of P.L.2004, c.132 (C.3B:9-4.2).
66.
N.J.S.3B:9-4 is amended to read as follows:
Disclaimer
by a fiduciary of an interest in property. 3B:9-4. a. A fiduciary or agent
acting on behalf of a principal within the express, general or implied
authority of a power of attorney, may disclaim property or any interest
therein. b. Except as provided in subsection c. of this section, such
disclaimer shall not be effective unless, prior thereto, the fiduciary or agent
has been authorized to disclaim by the court having jurisdiction over the
fiduciary or the principal after finding that such disclaimer is advisable and
will not materially prejudice the rights of: (1) creditors, devisees, heirs or
beneficiaries of the estate; (2) beneficiaries of the trust; or (3) the minor,
the incapacitated individual, the conservatee or the principal for whom such
fiduciary or agent acts. c. If the governing instrument expressly authorizes
the fiduciary or the agent to disclaim, the disclaimer by the fiduciary or
agent shall be effective without court authorization.
C.3B:9-4.1
Disclaimer by a fiduciary of a power of discretion. 67. a. Any fiduciary,
including an agent acting on behalf of a principal within the implied or
general authority of a power of attorney, may disclaim any power or discretion
held by such fiduciary in a fiduciary capacity. Unless the governing instrument
specifically authorizes the fiduciary to disclaim such power or discretion
without obtaining court authorization to do so, the disclaimer by the fiduciary
shall not be effective unless, prior thereto, such fiduciary has been
authorized to disclaim by the court having jurisdiction over the fiduciary
after finding that it is advisable and will not materially prejudice the rights
of: (1) devisees, heirs, or beneficiaries of the decedent; (2) the minor, the
incapacitated individual, the conservatee, or the principal; or (3) the
beneficiaries of the trust. b. Unless expressly authorized by the court or by
the governing instrument: (1) Any disclaimer under this section shall be
personal to the fiduciary so disclaiming and shall not constitute a disclaimer
by a co-fiduciary or a successor or substituted fiduciary of such power or
discretion; (2) No disclaimer shall affect the rights of: (a) devisees, heirs
or beneficiaries of the decedent; (b) the minor, the incapacitated individual,
the conservatee, or the principal; or (c) the beneficiaries of the trust.
C.3B:9-4.2
Time for disclaiming. 68. a. The disclaimer of an interest in property may be
delivered, and if required by this chapter filed, at any time after the
effective date of the governing instrument, or in the case of an intestacy, at
any time after the death of the intestate decedent, and must be delivered, and
if required by this chapter filed, before the right to disclaim is barred by N.J.S.3B:9-10.
With respect to joint property, the barring of the right to disclaim the
present interest does not bar the right to disclaim the future interest. b. The
disclaimer of a power or discretion by a fiduciary, including an agent acting
on behalf of a principal within the implied or general authority of a power of
attorney, in a fiduciary capacity may be made at any time, before or after
exercise.
69.
N.J.S.3B:9-6 is amended to read as follows:
Delivering
and Filing disclaimer. 3B:9-6. a. The disclaimer of an interest by an intestate
heir, or a person who is a devisee or beneficiary under a will or a
testamentary trust or who is an appointee under a power of appointment
exercised by a will or testamentary trust, including a person succeeding to a disclaimed
interest, shall be filed in the office of the surrogate or clerk of the
Superior Court in which proceedings have been commenced or will be commenced
for the administration of the estate of the decedent or deceased donee of the
power of appointment. A copy of the disclaimer shall also be delivered to any
personal representative, or other fiduciary of the decedent or to the donee of
the power or to the holder of the legal title to which the interest relates.
The fiduciary shall promptly notify the person or persons who take the
disclaimed interest, although any such failure to provide the notice required
herein shall not affect the validity of the disclaimer. b. The disclaimer of an
interest in property, other than property passing under or pursuant to a will
or testamentary trust shall be delivered to the fiduciary, payor or other
person having legal title to or possession of the property or interest
disclaimed or who is entitled thereto in the event of disclaimer. Any
fiduciary, payor or other person having title to or possession of the property
or interest who receives such disclaimer shall promptly notify the person or
persons who take the disclaimed interest, although any such failure to provide
the notice required herein shall not affect the validity of the disclaimer. c.
In the case of a disclaimer by a fiduciary of a power or discretion: (1) If
such disclaimer is made after court authorization, the fiduciary shall deliver
a copy to such person or persons and in such manner as shall be directed by the
court; or (2) If such disclaimer is made without court authorization pursuant
to N.J.S.3B:9-4(a), the fiduciary shall deliver a copy to all co-fiduciaries,
but if there are none, then to all persons whose property interests are
affected by the disclaimer. d. In the case of a will or testamentary trust or
power of appointment under a will or testamentary trust, if real property or
any interest therein is disclaimed, the surrogate or clerk of the Superior
Court, as the case may be, shall forthwith forward a copy of the disclaimer for
filing in the office of the clerk or register of deeds and mortgages of the
county in which the real property is situated. In the case of a nontestamentary
instrument or contract, if real property or any interest therein is disclaimed,
the original thereof shall be filed in the office of the clerk or register of
deeds and mortgages of the county in which the real property is situated. e.
For the purposes of this section, delivery may be effected: (1) in person; (2)
by registered or certified mail; or (3) by another means which is reasonably
likely to accomplish delivery.
70.
N.J.S.3B:9-7 is amended to read as follows:
Recording
of disclaimer where real property or interest therein is disclaimed. 3B:9-7.
Each county clerk or register of deeds and mortgages shall provide a book to be
entitled "Disclaimers," so arranged that he may record therein: a.
The name of the disclaimant; b. The name of the decedent or the name of the
donee of the power of appointment, the name of the trustee or other person
having legal title to, or possession of, the property or interest disclaimed or
entitled thereto in the event of disclaimer or the name of the donee of the
power of appointment; c. The location of the property; d. The file number of
the county clerks office or the office of register of deeds and mortgages
indorsed upon each disclaimer filed; e. The date of filing the disclaimer. The
county clerk or the register of deeds and mortgages shall maintain in the
record an alphabetical index of the names of all disclaimants stated in any
disclaimer file, and also keep in his office for public inspection, all
disclaimers so filed therein.
71.
N.J.S.3B:9-8 is amended to read as follows:
Effect
of disclaimer. 3B:9-8. A disclaimer acts as a nonacceptance of the disclaimed
interest, rather than as a transfer of the disclaimed interest. The disclaimant
is treated as never having received the disclaimed interest. Unless a governing
instrument otherwise provides the property or interest disclaimed devolves: a.
As to a present interest: (1) in the case of an intestacy, a will, a
testamentary trust or a power of appointment exercised by a will or
testamentary trust, as if the disclaimant had predeceased the decedent or, if
the disclaimant is designated to take under a power of appointment exercised by
a will or testamentary instrument, as if the disclaimant had predeceased the
donee of the power. If by law or under the will or testamentary trust the
descendants of the disclaimant would take the disclaimants share by
representation were the disclaimant to predecease the disclaimant, then the
disclaimed interest devolves by representation to the descendants of the
disclaimant who survive the decedent; and (2) in the case of a nontestamentary
instrument or contract, other than a joint property interest, as if the
disclaimant had died before the effective date of the instrument or contract.
If by law or under the nontestamentary instrument or contract the descendants
of the disclaimant would take the disclaimants share by representation were the
disclaimant to predecease the effective date of the instrument, then the
disclaimed interest devolves by representation to the descendants of the
disclaimant who survive the effective date of the instrument. (3) in the case of
joint property created by a will, testamentary trust or non-testamentary
instrument: (a) if the disclaimant is the only living owner, the disclaimed
interest devolves to the estate of the last to die of the other joint owners;
or (b) if the disclaimant is not the only living owner, the disclaimed interest
devolves equally to the living joint owners, or all to the other living owner,
if there is only one living owner. b. As to a future interest: (1) In the case
of a will or testamentary trust or a power of appointment exercised by a will
or testamentary trust, as if the disclaimant had died before the event
determining that the taker of the property or interest is finally ascertained
and his interest is vested; and (2) In the case of a nontestamentary instrument
or contract, as if the disclaimant had died before the event determining that
the taker of the property or interest had become finally ascertained and the
takers interest is vested; and (3) Notwithstanding the foregoing, a future
interest that is held by the disclaimant who also holds the present interest
and which takes effect at a time certain, such as a fixed calendar date or the
disclaimants attainment of a certain age, is not accelerated by the disclaimer
and continues to take effect at the time certain. c. Except as provided in
subsection b. of this section, a disclaimer relates back for all purposes to
the date of death of the decedent or the donee of the power or the effective
date of the nontestamentary instrument or contract.
72.
N.J.S.3B:9-9 is amended to read as follows:
Bar
of right to disclaim. 3B:9-9. a. The right of a person to disclaim property or
any interest therein is barred by: (1) an assignment, conveyance, encumbrance,
pledge or transfer of the property or interest or a contract therefor; or (2) a
written waiver of the right to disclaim; or (3) an acceptance of the property
or interest or a benefit under it after actual knowledge that a property right
has been conferred; or (4) a sale of the property or interest is seized under
judicial process issued against him; or (5) the expiration of the permitted
applicable perpetuities period; or (6) a fraud on the persons creditors as set
forth in the "Uniform Fraudulent Transfer Act" (R.S.25:2-20 et seq.).
b. The disclaimant shall not be barred from disclaiming all or any part of the
balance of the property where the disclaimant has received a portion of the
property and there still remains an interest which the disclaimant is yet to
receive. c. A bar to the right to disclaim a present interest in joint property
does not bar the right to disclaim a future interest in that property. d. The
right to disclaim may be barred to the extent provided by other applicable
statutory law. 73. N.J.S.3B:9-10 is amended to read as follows:
Binding
effect of disclaimer or waiver. 3B:9-10. The disclaimer or written waiver of
the right to disclaim a property interest shall be binding upon the disclaimant
or the person waiving and all persons claiming by, through or under him.
74.
N.J.S.3B:9-11 is amended to read as follows:
Spendthrift
provision not to affect right to disclaim. 3B:9-11. The right to disclaim a
property interest exists notwithstanding any limitation on the interest of the
disclaimant in the nature of a spendthrift provision or similar restriction or
any restriction or limitation on the right to disclaim a property interest
contained in the governing instrument.
75.
N.J.S.3B:9-12 is amended to read as follows:
Right
to disclaim, etc.; under other law not abridged. 3B:9-12. This chapter does not
abridge the right of a person to waive, release, disclaim or renounce property
or an interest therein under any other statute or law.
76.
N.J.S.3B:9-13 is amended to read as follows:
Extension
of time to disclaim interest existing on February 28, 1980. 3B:9-13. An
interest in property existing on February 28, 1980, as to which, if a present
interest, the time for filing a disclaimer under this chapter has not expired,
or if a future interest, the interest has not become indefeasibly vested or the
taker finally ascertained, may be disclaimed within 9 months after February 28,
1980. An interest in property existing on the effective date of this chapter as
amended and supplemented by P.L.2004, c.132 (C.3B:3-33.1 et al.) as to which
the right to disclaim has not been barred by prior law may be disclaimed at any
time before the right to disclaim is barred by N.J.S.3B:9-10.
77.
N.J.S.3B:10-3 is amended to read as follows:
When
spouse entitled to assets without administration. 3B:10-3. Where the total
value of the real and personal assets of the estate of an intestate will not
exceed $20,000.00, the surviving spouse upon the execution of an affidavit
before the surrogate of the county where the intestate resided at his death,
or, if then nonresident in this State, where any of the assets are located, or
before the Superior Court, shall be entitled absolutely to all the real and
personal assets without administration, and the assets of the estate up to
$5,000.00 shall be free from all debts of the intestate. Upon the execution and
filing of the affidavit as provided in this section, the surviving spouse shall
have all of the rights, powers and duties of an administrator duly appointed
for the estate. The surviving spouse may be sued and required to account as if
he had been appointed administrator by the surrogate or the Superior Court. The
affidavit shall state that the affiant is the surviving spouse of the intestate
and that the value of the intestates real and personal assets will not exceed $20,000.00,
and shall set forth the residence of the intestate at his death, and
specifically the nature, location and value of the intestates real and personal
assets. The affidavit shall be filed and recorded in the office of such
surrogate or, if the proceeding is before the Superior Court, then in the
office of the clerk of that court. Where the affiant is domiciled outside this
State, the surrogate may authorize in writing that the affidavit be executed in
the affiants domicile before any of the officers authorized by R.S.46:14-7 and
R.S.46:14-8 to take acknowledgments or proofs.
78.
N.J.S.3B:10-4 is amended to read as follows: When heirs entitled to assets
without administration. 3B:10-4. Where the total value of the real and personal
assets of the estate of an intestate will not exceed $10,000.00 and the
intestate leaves no surviving spouse, and one of his heirs shall have obtained
the consent in writing of the remaining heirs, if any, and shall have executed
before the surrogate of the county where the intestate resided at his death,
or, if then nonresident in this State, where any of the intestates assets are
located, or before the Superior Court, the affidavit herein provided for, shall
be entitled to receive the assets of the intestate of the benefit of all the
heirs and creditors without administration or entering into a bond. Upon
executing the affidavit, and upon filing it and the consent, he shall have all
the rights, powers and duties of an administrator duly appointed for the estate
and may be sued and required to account as if he had been appointed
administrator by the surrogate or the Superior Court. The affidavit shall set
forth the residence of the intestate at his death, the names, residences and
relationships of all of the heirs and specifically the nature, location and
value of the real and personal assets and also a statement that the value of
the intestates real and personal assets will not exceed $10,000.00. The consent
and the affidavit shall be filed and recorded, in the office of the surrogate
or, if the proceeding is before the Superior Court, then in the office of the
clerk of that court. Where the affiant is domiciled outside this State, the
surrogate may authorize in writing that the affidavit be executed in the
affiants domicile before any of the officers authorized by R.S.46:14-7 and
R.S.46:14-8 to take acknowledgments or proofs.
C.3B:9-14
Federal law. 79. The provisions of this chapter, as amended and supplemented by
P.L.2004, c.132 (C.3B:3-33.1 et al.) are not intended to enlarge, limit, modify
or otherwise affect the federal requirements for a qualified disclaimer under
26 U.S.C. section 2518 or 26 U.S.C. section 2046. 80. N.J.S.3B:14-24 is amended
to read as follows: Authorization to exercise other powers. 3B:14-24. The court
having jurisdiction of the estate or trust may authorize the fiduciary to
exercise any other power or to disclaim any power, if the court determines such
exercise or disclaimer is necessary or advisable which in the judgment of the
court is necessary for the proper administration of the estate or trust.
C.3B:17-13
Effect of nonjudicial settlement or waiver of account. 81. Unless the governing
instrument expressly provides otherwise, an instrument settling or waiving an
account, executed by all persons whom it would be necessary to join as parties
in a proceeding for the judicial settlement of the account, shall be binding
and conclusive on all other persons who may have a future interest in the
property to the same extent as that instrument binds the person who executed
it.
82.
N.J.S.3B:22-2 is amended to read as follows:
Order
of priority of claims when assets insufficient. 3B:22-2. If the applicable
assets of the estate are insufficient to pay all claims in full, the personal
representative shall make payment in the following order: a. Reasonable funeral
expenses; b. Costs and expenses of administration; c. Debts and taxes with
preference under federal law or the laws of this State, including debts for the
reasonable value of services rendered to the decedent by the Office of the
Public Guardian for Elderly Adults; d. Reasonable medical and hospital expenses
of the last illness of the decedent, including compensation of persons
attending him; e. Judgments entered against the decedent according to the
priorities of their entries respectively; f. All other claims. No preference
shall be given in the payment of any claim over any other claim of the same
class, and a claim due and payable shall not be entitled to a preference over
claims not due. The commencement of an action against the personal
representative for the recovery of a debt or claim or the entry of a judgment
thereon against the personal representative shall not entitle such debt or
claim to preference over others of the same class.
83.
N.J.S.3B:22-3 is amended to read as follows:
Abatement
for purpose of paying claims and debts. 3B:22-3. The property of a decedents
estate shall abate for the purposes of paying debts and claims in the order
prescribed in N.J.S.3B:23-12.
84.
N.J.S.3B:22-4 is amended to read as follows:
Limitation
of time to present claims of creditors to personal representative; discharge of
personal representative where claim is not duly presented before distribution.
3B:22-4. Creditors of the decedent shall present their claims to the personal
representative of the decedents estate in writing and under oath, specifying
the amount claimed and the particulars of the claim, within nine months from
the date of the decedents death. If a claim is not so presented to the personal
representative within nine months from the date of the decedents death, the
personal representative shall not be liable to the creditor with respect to any
assets which the personal representative may have delivered or paid in
satisfaction of any lawful claims, devises or distributive shares, before the
presentation of the claim.
85.
N.J.S.3B:22-39 is amended to read as follows:
"Heirs
and devisees" defined. 3B:22-39. As used in this article, heirs and
devisees shall include the heirs and devisees of a deceased debtor and the
heirs and devisees of any of them, who shall have died before the commencement
of the action, authorized by this article, to whom any of the real or personal
property, of which the debtor died seized or possessed, descended or was
devised.
86.
N.J.S.3B:23-12 is amended to read as follows:
Abatement
generally. 3B:23-12. Except as provided in N.J.S.3B:23-14 and except as
provided in connection with the share of a surviving spouse who elects to take
an elective share, shares of distributees abate, without any preference or
priority as between real and personal property, in the following order: a.
Property passing by intestacy; b. Residuary devises; c. General devises; d.
Specific devises; and e. Abatement within each classification is in proportion
to the amount of property each of the beneficiaries would have received if full
distribution of the property had been made in accordance with the terms of the
will.
87.
N.J.S.3B:24-4 is amended to read as follows:
Apportionment
of tax to transferees in absence of directions to contrary. 3B:24-4. In the
absence of directions to the contrary: a. That part of the tax shall be
apportioned to each of the transferees as bears the same ratio to the total tax
as the ratio which each of the transferees property included in the gross tax
estate bears to the total property entering into the net estate for purposes of
that tax, and the balance of the tax shall be apportioned to the fiduciary, the
values as finally determined in the respective tax proceedings being the values
to be used as the basis for apportionment of the respective taxes; b. Any
deduction allowed under the law imposing the tax by reason of the relationship
of any person to the decedent or by reason of the charitable purposes of the
gift shall inure to the benefit of the fiduciary or transferee, as the case may
be, subject nonetheless to the provisions of N.J.S.3B:24-3; c. Any deduction
for property previously taxed and any credit for gift taxes paid by the
decedent shall inure to the benefit of all transferees and the fiduciary and
the tax to be apportioned shall be the tax after allowance of the deduction and
credit; and d. Any interest resulting from late payment of the tax shall be
apportioned in the same manner as the tax and shall be charged by the fiduciary
and any trustee of any inter vivos trust and any other transferee wholly
against corpus.
88.
N.J.S.3B:25-1 is amended to read as follows:
Nonexoneration
of property subject to mortgage or security interest; exception. 3B:25-1. When
property subject to a mortgage or security interest descends to an heir or
passes to a devisee, the heir or devisee shall not be entitled to have the
mortgage or security interest discharged out of any other property of the
ancestor or testator, but the property so descending or passing to him shall be
primarily liable for the mortgage or secured debt, unless the will of the
testator shall direct that the mortgage or security interest be otherwise paid.
A general direction in the will to pay debts shall not be deemed a direction to
pay the mortgage or security interest.
89.
N.J.S.3B:28-1 is amended to read as follows:
Estates
of dower and curtesy prior to May 28, 1980. 3B:28-1. The widow or widower,
whether alien or not, of a person dying intestate or otherwise, shall be endowed
for the term of her or his life of one half of all real property of which the
decedent, or another to the decedents use, was seized of an estate of
inheritance at any time during marriage prior to May 28, 1980,unless the widow
or widower shall have relinquished her right of dower or his right of curtesy
in the manner provided by P.L.1953, c.352 (C.37:2-18.1) or such right of dower
or such right of curtesy otherwise shall have been extinguished by law.
90.
N.J.S.3B:28-2 is amended to read as follows:
No
right of dower or curtesy created on or after May 28, 1980. 3B:28-2. No right
of dower or curtesy in real property shall arise if, on or after May 28, 1980,
a person shall become married, or such person or another to his or her use,
shall become seized of an estate of inheritance.
91.
N.J.S.3B:28-3 is amended to read as follows:
Right
of joint possession of principal matrimonial residence where no dower or
curtesy applies; alienation. 3B:28-3. a. During life every married person shall
be entitled to joint possession with his or her spouse of any real property
which they occupy jointly as their principal matrimonial residence and to which
neither dower nor curtesy applies. One who acquires an estate or interest in
real property from a person whose spouse is entitled to joint possession
thereof does so subject to such right of possession, unless such right of
possession has been released, extinguished or subordinated by such spouse or
has been terminated by order or judgment of a court of competent jurisdiction
or otherwise. b. Nothing contained herein shall be construed to prevent the
release, subordination or extinguishment of the right of joint possession by
either spouse, by premarital agreement, separation agreement or other written
instrument. c. The right of joint possession shall be extinguished by the
consent of both parties, by the death of either spouse, by judgment of divorce,
separation or annulment, by other order or judgment which extinguishes same, or
by voluntary abandonment of the principal matrimonial residence.
92.
N.J.S.3B:28-3.1 is amended to read as follows:
Joint
occupancy of principal matrimonial residence; mortgage lien. 3B:28-3.1. The
right of joint possession to the principal matrimonial residence as provided in
N.J.S.3B:28-3 is subject to the lien of a mortgage, irrespective of the date
when the mortgage is recorded, provided: a. The mortgage is placed upon the
matrimonial residence prior to the time that title to the residence was
acquired by the married person; or b. The mortgage is placed upon the
matrimonial residence prior to the marriage; or c. The mortgage is a purchase
money mortgage; or d. The parties to the marriage have joined in the mortgage;
or e. The right of joint possession has been subordinated, released or extinguished
by subsection b. or c. of N.J.S.3B:28-3.
C.46:2E-14
Disclaimer of interests previously governed by P.L.1979, c.492 (C.46:2E-1 to
46:2E-13). 93. A disclaimer of an interest by any person who is a grantee,
donee, surviving joint tenant, surviving tenant by the entirety, surviving
party to a joint deposit account, a P.O.D. account or a trust deposit account,
person succeeding to a disclaimed interest, beneficiary under a nontestamentary
instrument or contract, appointee under a power of appointment exercised by a
nontestamentary instrument or a beneficiary under an insurance policy is
governed by N.J.S.3B:9-1 et seq., as amended and supplemented by P.L.2004,
c.132 (C.3B:3-33.1 et al.).
Repealer.
94. The following are hereby repealed: N.J.S.3B:4-6; N.J.S.3B:7-1 through
3B:7-4, inclusive; N.J.S.3B:9-5; N.J.S.3B:22-9; and Laws of P.L.1979, c.492
(C.46:2E-1 to 46:2E-13 both inclusive).
95.
This act shall take effect on the 180th day after enactment.
Approved
August 31, 2004.
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